The Allahabad High Court while granting bail has said that an offence may carry maximum punishment beyond the powers of a Magistrate, yet the offences would still remain triable by a Magistrate.
A single-judge bench of Justice Subhash Vidyarthi passed this order while hearing a Criminal Misc Bail Application filed by Anil Kumar Nanda.
The application has been filed by the applicant seeking his release on bail in Case under Sections 409, 420, 467, 468, 471, 477 A, 204, 120 B of IPC and Sections 66 C and 66 D of the Information Technology Act, Police Station Jawan, District Aligarh.
The aforesaid case has been registered on the basis of a first information report dated 07.05.2019 lodged by a Junior Branch Manager of Zila Sahkari Bank Private Limited Aligarh against eight named accused persons, including the applicant, alleging that a three-member committee had made an inquiry and submitted a report dated 15.07.2019, as per which the accused persons had made embezzled an amount of Rs 11,83,35,436.27.
It has been stated in the affidavit filed in support of the bail application that the applicant is innocent and he has been falsely implicated in the case; that the applicant had been transferred from the concerned branch in September 2015 and the FIR has been lodged on 07.05.2019 after an inordinate delay whereas the bank’s accounts are audited every year; that the FIR does not make any mention of the dates during which the alleged fraudulent transactions took place; that it has wrongly been mentioned in the inquiry report as also in the FIR that the amount of Rs 11,83,35,000 has been embezzled; that a committee constituted by the bank has re-examined the matter and had issued a report dated 24.02.2020 stating that the balance as on 30.08.2014 was Rs 4.15 crore only.
It has further been stated in the affidavit that during pendency of the criminal case, the bank has recovered a sum of Rs 2,18,00,000 till 31.03.2019 from the members who had taken loans from the bank and, therefore, it cannot be said that the entire amount of loan was embezzled. The affidavit further states that the bank does not give any loan to the farmers directly. It has also been stated in the affidavit that the services of the applicant have already been terminated by means of a resolution dated 15-06-2020 passed by the Board of Directors of the Bank.
The affidavit further asserts that the applicant has not done any embezzlement or tampering of documents; that the applicant belongs to a respectable family; that he has clean antecedents and he was not arrested by the police, rather he had surrendered in the Court on 22.06.2021 and since then he is languishing in jail and a charge sheet has been submitted on 13.07.2021. The affidavit contains an undertaking that if the applicant is enlarged on bail, he will not abscond and he will not tamper with the evidence.
The informant bank has filed a counter affidavit stating that the applicant was posted as the Branch Manager in Kasimpur Branch during the period 26-07-2006 to 07-09-2012 and 28-09-2012 to 06- 09-2015, along with two cashiers Sanjay Kumar Maurya and Brijesh Awasthi, who have also been made accused in the case. During this period, loans of Rs 9,52,04,742 were disbursed to fake persons.
On 28.06.2018, a complaint was made to the Secretary / Chief Executive Officer of District Cooperative Bank, Aligarh that the applicant had caused a loss of Rupees 3 crore to the bank by making forgeries in collusion with some employees of the bank and Cooperative Societies.
Upon the aforesaid complaint, the Secretary / Chief Executive Officer of the bank had constituted a three-member inquiry committee and on 27.02.2019, the committee submitted a report alleging embezzlement of an amount of Rs 11,83,35,436.2 and that many of the farmers were not found to be residents of the villages mentioned in their respective applications and it appeared that the loans had been granted to fictitious persons.
Rajiv Lochan Shukla, the counsel for the applicant, has submitted that the applicant was transferred from the branch in question on 06.5.2015 and loans amounting to Rs 4.57 crore were disbursed during the period 2015 to 2019 and during the same period, an amount of Rs 6.75 crore was recovered by the bank, and the maximum share of the recovery amount belonged to old outstanding loans of Rs 4.15 crore.
He has further submitted that the applicant has already been dismissed from service through a resolution passed by the Board of Directors in its meeting held on 15.06.2020. He has submitted that the bank does not grant any loan to any farmer directory. The loan accounts are maintained by primary Co-operative Societies and the particulars of the Societies are certified by the Secretary / Chief Executive Officer Society before the bank.
In the case also, the loan amounts had been disbursed to the individual farmers from the accounts of the societies, recovery of the loan amounts is also made through the primary Co-operative Societies and, therefore, the applicant, as the manager of the bank branch was not directly responsible either for disbursal or for recovery of the loans and the applicant cannot be held responsible for any irregularity committed by any of the Societies in disbursal / recovery of the loan amounts.
The counsel for the applicant has submitted that a co-accused Rajendra Prasad Sharma (former CEO / primary Cooperative Societies) had been granted anticipatory bail by means of an order dated 19.12.2020 passed by the Court in Anticipatory Bail Application. He has submitted that none of the other co-accused persons have been arrested in the case. The applicant had surrendered on 22.06.2021 and he is languishing in jail for the last about 15 months.
Shukla has submitted that the offences alleged against the applicant are all triable by a Magistrate of First Class.
Per Contra, Kundan Rai, the Counsel for the informant bank, has relied upon a decision of the Bombay High Court in the case of Harshad Purushottam Mehta vs The State of Maharashtra, 2020 (2) AIR Bombay R Criminal 785, wherein the Bombay High Court has held the Magistrate is empowered to commit the case to the court of Sessions if he is of the opinion that the case “ought to be tried by it.”
The Court said,
Since the offences involved in the case are all triable by a Magistrate, the Magistrate has power to grant bail to the accused in the case.
The aforesaid cases related to disciplinary action taken against the bank employees and the question of grant or refusal of bail was not adjudicated in the aforesaid cases. Therefore, these cases are not relevant for deciding the prayer for grant of bail to the applicant in the case.
It is settled law that there cannot be any parity in rejecting an application for grant of bail. Moreover, from a bare reading of the aforesaid order, I do not find that the Court has recorded any reason for rejection of bail which can be applied in the case also for rejecting the bail application.
The Court noted that, in Emperor v H. L Hutchinson AIR 1931 All 356, the Court had held that an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.
Analysing the facts of the case in light of the legal position discussed above, the Court found that the following facts are relevant for considering the applicant’s prayer for grant of bail: –
(i) The applicant has no criminal history;
(ii) The applicant was not arrested by the Police, rather he had surrendered in the Court on 22.06.2021
(iii) The applicant has already undergone more than 15 months’ incarceration;
(iv) The offences alleged in the present case are all triable by a Magistrate;
(v) A charge sheet has already been submitted on 13.07.2021;
(vi) The applicant’s services have already been terminated through a resolution dated 15-06-2020 and he is not in a position to tamper with the evidence.
(vii) The affidavit filed in support of the bail application contains an undertaking that if the applicant is enlarged on bail, he will not abscond and he will not tamper with the evidence.
(viii) No material has been placed by the informant Bank to doubt the aforesaid undertaking given in the affidavit and to show that there is any circumstance necessitating continuance of the applicant’s incarceration without his guilt being established in trial and without his conviction.
“Keeping in view the aforesaid facts, I am of the view that the applicant is entitled to be released on bail pending conclusion of the trial,” the Court observed while allowing the bail application.
The Court ordered that,
Let the applicant Anil Kumar Nanda, be released on bail in Case under Sections 409, 420, 467, 468, 471, 477 A, 204, 120 B of IPC and Sections 66 C and 66 D of the Information Technology Act, 2000, Police Station Jawan, District Aligarh, on his furnishing a personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not influence any witness.
(iii) The applicant will appear before the trial court on the dates fixed, unless personal presence is exempted.
(iv) The applicant shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application before this Court seeking cancellation of bail.